R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE24H DAY OF NOVEMBER, 2021 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO R.F.A.No.107/2006 C/W R.F.A.No.108/2006 RFA No.107/2006: BETWEEN: SRI.SIDDARAMAIAH S/O LATE MUNICHIKKAIAH AGE:
50. YEARS R/O SUNKADAKATTE, SRIGANDADA KAVALU, YESHWANTHAPURA HOBLI, BANGALORE -560 091. ..APPELLANT (BY SRI.K.B.MOUNESH KUMAR, ADVOCATE - THROUGH V.C.) AND:
1. SRI.MANJU S/O LATE MUNIYAPPA AGE:
40. YEARS2 SRI.HANUMEGOWDA S/O LATE MUNIYAPPA AGE:
31. YEARS23. SRI.THIMMEGOWDA S/O LATE MUNIYAPPA AGE:
35. YEARS (RESPONDENTS1TO3ARE RESIDING AT SUNKADAKATTE, SRIGANDADA KAVALU YESHWANTHAPURA HOBLI, BANGALORE -560 091.
4. ABDUL KAREEM SAB S/O LATE LALAMIA AGE:
63. YEARS R/O: NO.2, 2ND CROSS, 4TH MAIN, MUNIKARIYAPPA COMPOUND, AGRAHARA DASARAHALLI BANGALORE -560 057. ..RESPONDENTS (BY SRI.C.R.GOPALASWAMY, ADVOCATE FOR R-1 TO3 NOTICE TO R-4 IS DISPENSED WITH VIDE
ORDERDATED2308.2006) THIS RFA IS FILED UNDER SECTION96CPC AGAINST THE
JUDGMENTAND DECREE DATED2210.2005 PASSED IN O.S.No.7803/95 ON THE FILE OF THE XXIV ADDL. CITY CIVIL JUDGE, BANGALORE (CCH-6), PARTLY DECREEING THE SUIT FOR PERMANENT INJUNCTION AND DECLARATION. RFA No.108/2006: BETWEEN: SRI.SIDDARAMAIAH S/O LATE MUNICHIKKAIAH AGE:
50. YEARS R/O SUNKADAKATTE, SRIGANDADA KAVALU, 3 YESHWANTHAPURA HOBLI, BANGALORE -560 091. ..APPELLANT (BY SRI.K.B.MOUNESH KUMAR, ADVOCATE) AND:
1. SRI.MANJU S/O LATE MUNIYAPPA AGE:
40. YEARS2 SRI.HANUMEGOWDA S/O LATE MUNIYAPPA AGE:
31. YEARS3 SRI.THIMMEGOWDA S/O LATE MUNIYAPPA AGE:
35. YEARS (RESPONDENTS1TO3ARE RESIDING AT SUNKADAKATTE, SRIGANDADA KAVALU YESHWANTHAPURA HOBLI, BANGALORE -560 091. ..RESPONDENTS (BY SRI C.R.GOPALASWAMY, ADVOCATE FOR R-1 TO R-3, NOTICE TO R-4 IS DISPENSED WITH VIDE
ORDERDATED2308.2006) THIS RFA IS FILED UNDER SECTION96CPC AGAINST THE
JUDGMENTAND DECREE DATED2210.2005 PASSED IN O.S.No.4966/1994 ON THE FILE OF THE XXIV ADDL. CITY CIVIL JUDGE, BANGALORE (CCH-6), DISMISSING THE SUIT FOR PERMANENT INJUNCTION. THESE APPEALS COMING ON FOR FURTHER DICTATION THIS DAY THE COURT DELIVERED THE FOLLOWING:
4.
JUDGMENTThese are the two regular first appeals filed under Section 96 of Code of Civil Procedure and directed against the Judgment and decree morefully stated in the table below: SL. RFA No.O.S.No.DD AND RESULT No.1. 107/2006 7803/95 22.10.2005 Filed by Filed by Manju Suit for permanent Siddaramaiah and others injunction and declaration partly decreed with costs 2. 108/2006 4966/94 Filed 22.10.2005 Filed by by Suit for permanent Siddaramaiah Siddaramaiah injunction dismissed and anr with costs 2. In order to avoid confusion and overlapping parties are addressed in accordance with their rankings before the trial court or with reference to their names.
3. O.S.No.7803/95 is filed on 21.11.95 by Manju S/o late Muniyappa, Hanumegowda, S/o late Muniyappa, Thimmegowda, S/o late Muniyappa, 5 Doddamuniyamma. Doddamuniyamma is deleted vide order dated 01.08.2005 and the defendants therein are Siddaramaiah, S/o late Munichikkaiah and Abdul Kareem Sab for permanent injunction and declaration.
4. O.S.No.4966/94 is instituted on 25.08.1994 for permanent injunction filed by Siddaramaiah against Manju, Hanume Gowda, Thimme Gowda, Doddamuniyamma.
5. The schedule property in each of the case are as under: In O.S.No.7803/95: SCHEDULE `A' All that piece and parcel of the property bearing Sy.No.77/6, new Sy.No.106, measuring 2 acres situated at Srigandada Kavalu Village, Yeshwanthapura Hobli, North Taluk, Bangalore -91 and bounded on: East by:Sy.No.109 of Srigandada Kavalu Village West by:Land bearing Sy.No.76/4 and 6 76/5 of Srigandada Kavalu Village North by: Land bearing old Sy.No.77/7, New Sy.No.107 of Srigandada Kavalu Village and South by: Land bearing Sy.No.105 of Srigandada Kavalu Village SCHEDULE B All that piece and parcel of the property bearing Sy.No.77/7, new Sy.No.107 measuring 2 acres. Situated at Sunkadakatte Village, Yeshwanthapura Hobli, Bangalore North Taluk bounded on East by: Sy.No.77 property West by: Sy.No.98 property North by: Sy.No.74 & 75 property South by: Sy.No.106 property In O.S.No.4966/94: SCHEDULE `A' All that piece and parcel of the property bearing Sy.No.77/6, new Sy.No.106, measuring 2 acres situated at Srigandada Kavalu Village, Yeshwanthapura Hobli, North Taluk, Bangalore -91 and bounded on: East by:Sy.No.109 of Srigandada Kavalu Village West by:Land bearing Sy.No.76/4 and 76/5 of 7 Srigandada Kavalu Village North by: Land bearing old Sy.No.77/7, New Sy.No.107 of Srigandada Kavalu Village and South by: Land bearing Sy.No.105 of Srigandada Kavalu Village 6. O.S.No.7803/95 filed by Manju and others against Siddaramaiah and one Abdul Kareem Sab for permanent injunction and declaration that said Siddaramaiah has no manner of right or interest to execute General Power of Attorney, affidavit or sale agreement or to create any lien, charge or any encumbrance over landed property in Sy.No.77/7 and New No.107 measuring 2 acres including kharab of 4 guntas of Srigandada Kavalu Village, Yeshwanthpura Hobli, Bengaluru North Taluk and also to declare that said Manju and others the plaintiffs have perfected their title over the land in Sy.No.106 through the principles of adverse possession and for further declaration that the transaction dated 29.02.1988 8 between Siddaramaiah and Abdul Kareem in the nature of General Power of Attorney by Siddaramaiah in favour of said Abdul Kareem as null and void and also subsequent transactions by said Sri.Abdul Kareem on the basis of the said document as illegal. The further relief is for permanent injunction to restrain the defendants from interfering with the possession.
7. The substance of the plaint in O.S.No.7803/95 is that 2 acres of dry land in Sy.No.77/6 and new No.106 of Srigandada Kavalu, Sunkadakatte Village, Yeshwanthpura Hobli, Bengaluru North Taluk, situate to the south of land in Sy.No.77/7 new No.107 of the same village. Sy.No.107 measures 2 acres including kharab of 4 guntas and land in Sy.No.106 measures 2 acres including 5 guntas of kharab. 9
8. The said land in Sy.No.77/7 new number 107 was purchased by Doddamuniyamma under registered sale deed dated 26.06.1975 from one Muniyappa, S/o Lagumaiah. However, though the land in Sy.No.107 was sold in favour of Doddamuniyamma she was actually placed in possession of land in Sy.No.106. The said status continued for more than 20 years. The plaintiffs 1 to 3 also did not make any attempt to verify the documents. It is further claimed that in the year 1992 defendant No.1-Siddaramaiah represented before the revenue authorities to change the khatha of the land in Sy.No.107 in his name claiming that he was in possession of the land. In the process khatha was changed to his name in respect of the land in Sy.No.107. In the revenue records pertaining to Sy.No.106 of Srigandadakaval Village the name of first defendant's grandfather Muniswamappa was mentioned as Kathedar and the person in possession. 10 It is further claimed either the first defendant Siddaramaiah or the name of his father Munichikkaiah was not shown in RTC extract pertaining to Sy.No.106 from the year 1989. The plaintiffs further claim that defendant No.1 do not have right, title interest or possession of any kind over the schedule property. Thus the plaintiffs assert that the land in Sy.No.106 continued to be in their possession whereas the land in Sy.No.107 continued to be in possession of defendant No.1 and his father.
9. The plaintiffs further state that defendant No.1 and his father Munichikkaiah executed General Power of Attorney in favour of defendant No.2-Abdul Kareem Sab and also sworn to affidavit before notary public regarding title and possession in respect of land in Sy.No.107 along with land in other Sy.No.75/2. Further the defendant No.1 and his father delivered the possession of the land in Sy.No.107 along with 11 other land in Sy.No.75/2 to their Power of Attorney holder Mr.Abdul Kareem Sab who is the second defendant.
10. Insofar as revenue records pertaining Sy.No.106, while effecting change of khatha in favour of plaintiffs endorsement was written by revenue officials that there was mutual exchange of land between plaintiffs and first defendant.
11. The first defendant in pursuance of the said arrangement sold land in Sy.No.107 of Srigandada Kavalu Village in favour of defendant No.2.
12. In other words executed General Power of Attorney on 29.02.1988 along with agreement and affidavit. The second defendant in pursuance of Power of Attorney and the other documents executed by defendant No.1 formed layout over land in Sy.No.107 and sold several sites to the respective purchasers. 12 Insofar as plaintiffs are concerned they continued to be in possession of land in Sy.No.106. The plaintiffs further complain that defendant No.1, besides, having possessed and exercised the rights of ownership over the land in Sy.No.107 developed the malafide intention to knock off land in Sy.No.106.
13. It is in this connection the defendant No.1 filed O.S.No.4966/94 over the land in Sy.No.106 and the said suit suppressed the fact of sale of several sites made by him in Sy.No.107 of Srigandada Kavalu Village either by himself or through his power of attorney holder Abdul Kareem Sab to several persons.
14. The defendant No.1 filed the written statement denying the plaint averments. The defendant No.4- Doddamuniyamma deleted and defendant No.2 remained exparte. Defendant No.1 further contended 13 that he is the absolute owner in possession of land in Sy.No.106 of Srigandada Kavalu Village and that the said land was purchased by his grandfather Muniswamappa under registered sale deed dated 04.10.1949 from one Thimma and the revenue records pertaining to said land are confirmed that he is owner and in possession of the schedule property. His father Munichikkaiah died on 21.12.1989. It is further contention that his father being illiterate did not take suitable action to get his name entered in the revenue records due to unawareness and after his death as a sole and exclusive legal heir the defendant No.1 has been owning and possessing land in Sy.No.106 of Srigandada Kavalu Village. It was further contended that he had inherited a portion of land in Sy.No.75/2 and land in Sy.No.107 to the extent of 10 guntas. Thus he asserts title over the land in Sy.No.106 by virtue of acquisition through 14 registered sale deed by Muniswamappa, grandfather of said first defendant. Said defendant also claimed land in Sy.No.107 to the extent of 10 guntas.
15. It is necessary to mention since there are two suits filed by rival parties the written statement in the first case is almost similar to plaint in next case.
16. The learned trial Judge framed following issues in each of the case as under: On 27.07.2003, following issues were framed in O.S.No.7803/1995:
1. Do plaintiffs prove that the defendant had no right, title or interest or competency to execute a General Power of Attorney and an affidavit and sale agreement?.
2. Do the plaintiffs prove that defendant No.1 had no right to create any will, charge or any transfer of title or interest by way of sale deed, mortgage deed or deed of transfer in Sy.No.107?.
3. Are the plaintiffs entitled for permanent injunction against defendant as prayed for?.
4. Are the plaintiff entitled for declaration of the title by way of adverse possession in Sy.No.106 at Schedule -A?. 15 5. Do the plaintiff prove that the transaction dt. 29-2-1998 between defendants 1 and 2 with the GPA of defendant No.1 is null and void?.
6. Do the plaintiffs prove that all subsequent transaction made by defendant No.2 in Sy.No.107 are null, void and illegal?.
7. Whether the suit is not properly valued and proper Court fee not paid?.
8. What order?. On 07.03.2005, addl. Issues were framed in O.S.No.7803/1995:
9. Do plaintiffs prove that the Mahazar dt.16.12.2000 drawn before the Panchayatdars by the Asst. Commissioner, Bangalore North Division, is binding on the Civil Court?.
10. Does plaintiff establishes that the Mahazar dt.16.12.2000 conclusively establishes that the plaintiff is in possession of the suit schedule property?.
11. Incidentally, does 1st defendant proves that since he has filed an Appeal against the order passed by the Asst. Commissioner, Bangalore North Sub-Division, before the Dy. Commissioner, so called Mahazar dt.16.12.2000 drawn by the Asst. Commissioner will not help the plaintiffs?.
12. Whether the defendants are bound by the Mahazar dt.16.12.2000 drawn by the Asst. Commissioner?. 16 On 7.4.1997 following issues were framed in O.S.No.4966/1994:
1. Whether the plaintiff proves that he was in lawful possession of the suit schedule property on the date of filing the suit?.
2. Whether the plaintiff proves interference by the defendants?.
3. Whether the plaintiff is entitled to the relief of permanent injunction?.
4. What decree or order?.
17. Learned trial Judge was accommodated with oral and documentary evidence as under: List of witnesses examined for plaintiffs in O.S.No.7803/95 PW-1- Thimmegowda -affidavit dt.9-3-2005 PW-2- Palani -affidavit dt.17-3-2005 PW-3- R.Raja @ Militry Rajanna-affidavit dt.17-3-2005 PW-4-R.Rangaswamy-affidavit dt.17-3-2005 PW-5-C.Manjunath -affidavit dt.17-3-2005 PW-6-Kareem Sab -affidavit dt.21-3-2005 List of witnesses examined for defendants in O.S.No.7803/95 DW-1-M.Siddaramaiah -affidavit dt.15-4-2005 List of documents exhibited for plaintiffs in O.S.No.7803/95 17 Ex.P-1-Mutation No.IHC590-91 in 1st defendant's name Ex.P-2-C.C. of revenue extract No.11/93-94 Ex.P-3-Order by Asst. Commissioner dt.22- 6-2000 Ex.P-4-Spot Mahazar drawn by Asst. Commissioner dt.16-12-2001 Ex.P-5- Demand notice issued by Spl.Dy.Commissioner Ex.P-6-Encumbrance certificate Ex.P-7 to P9-Three R.T.C. for 2001 to 2004 Ex.P-10- Tax paid receipt Exs.P-11 to P-13 - Three lease agreement dt.1/1/2004, 1/7/2004 and 1/1/2004 executed by tenants Ex.P-14- C.C. of sale deed dt.11/12/2003 executed by 1st defendant in favour of Ramachandraiah Ex.P-15- Sale deed dt.11-12-2003 executed by 1st defendant in favour of Smt.Lakshmamma Ex.P-16- C.C. of sale deed dt.10-12-2003 executed by 1st defendant in favour of Ibrahim in respect of Sy.No.107 Ex.P-17- Original GPA of 1st defendant executed in favour of Karim Sab, in 18 respect of Sy.No.107, Srigandada Kavalu, dt.5.4.91 Ex.P-18- affidavit supporting GPA executed in favour of Karim Sab by 1st defendant Ex.P-19- Public notice issued in `Sanjevani' Newspaper dt. 27-2-1997 List of documents examined for defendants in O.S.No.7803/95 Ex.D-1- C.C. of Genealogical tree issued by village accountant of Saneguruvanahalli Panchayath Ex.D-2- C.C. of death certificate of Munichikkaiah Ex.D-3 & D-4- C.C. of encumbrance certificate for the period 1/4/1949 to 29/9/1953 and 1/4/1949 to 31/3/1956 pertaining to suit schedule property Ex.D-5-C.C. of registered sale deed dated 4/10/1949 executed by one Thimma in favour of Muniswamappa in respect of Sy.No.106 Exs.D-6 to D-20 - 15 tax paid receipts Ex.D-21- C.C. of memorandum of appeal in Appeal number 200/1994-95 before Assistant Commissioner, Bangalore Ex.D-22 to D-28 are 7 RTC copies pertaining to Sy.No.106 for the years 1980-81 to 1993-94 19 Ex.D-29- Ledge extract pertaining to Sy.No.106 Ex.D-30- C.C. of endorsement dt.31/5/1994, issued by the police Ex.D-31-C.C. of the complaint dt.30/11/1994, given Rajgopalnagar police, against Hanumegowda and others Ex.D-32- C.C. of the order dt. 25/6/2004 passed in RFA No.473/1998 on the file of Hon'ble High Court of Karnataka Ex.D-33 to D-35-C.C. of record of rights pertaining to Sy.No.75/2 of Srigandadakavalu List of witnesses examined for plaintiff in O.S.No.4966/94 PW-1-Siddaramaiah dt.27-9-1997 PW-2-Ramanna dt.28-2-1998 List of witnesses examined for defendant in O.S.No.4966/94: DW-1-Manjunath dt.13-3-1998 DW-2-R.Ananthapadmanabha dt.24-3-1998 DW-3-Velu dt.24-3-1998 DW-4-Mohan dt.24-3-1998 DW-5-Krishnappa dt.2-4-1998 DW-6-Kirshna dt.2-4-1998 List of documents exhibited for the plaintiff in O.S.No.4966/94: Ex.P-1- Notice dt.6-3-1996 from the office of the 20 Asst. Commissioner, Bangalore Sub- division, Bangalore Ex.P-2-Geneological tree issued by Saneguruvanahalli Panchayat, dt.27-7- 1994 Ex.P-3-Death Certificate of Munichikkaiah -date of death 21-12-89 Ex.P-4-C.C. of Form No.24- Ledger extract in respect of Sy.No.106 Ex.P-5-Encumbrance Certificate from 1-4-49 to 29-9-53 Ex.P-6- Encumbrance Certificate from 1-4-49 to 31-3-56 Ex.P-7- Nil - encumbrance certificate from 17-8- 93 to 19-4-94 Ex.P-8- sale deed dt.4-10-1949 executed by Thimma to Munishamappa Exs.P-9 to P-23 - Tax receipts Ex.P-24- Copy of Memorandum of appeal before the AC, Bangalore in Appeal No.200/95 Exs.P-25 to P-30 - Record of rights Ex.P-31- Endorsement of Rajgopalnagar P.S., dt.31-5-94 Ex.P-32-Notice in case No.RA1471997-98 Ex.P-33-Copy of Police Complaint dt.30-11-94 21 List of documents examined for defendants in O.S.No.4966/94: Ex.D-1-Record of rights Ex.D-2- Extract of katha transfer Ex.D-3 to D-5- Record of Rights Ex.D-6-Tax paid receipt Ex.D-7- C.C. of plaint in O.S.No.7803/95 Ex.D-8- C.C. of I.A.1 with affidavit in O.S.No.7803/95 Ex.D-9-C.C. of order sheet in O.S.No.7803/95 Ex.D-10-paper notice Ex.D-10(a) - relevant portion in Ex.D-10.
18. Upon conclusion of the trial, learned trial Judge partly decreed the suit in O.S.No.7803/95 with costs and dismissed the suit in O.S.No.4966/94 with costs. Being aggrieved by the same appellant-Siddaramaiah has preferred these first appeals.
19. Learned counsel Sri.K.B.Mounesh Kumar through VC for appellant-Siddaramaiah who is the plaintiff in O.S.No.4966/94 and defendant No.1 in the subsequent suit O.S.No.7803/95 submitted that the claim and contention of the Manju and others are 22 based on oral assertion without any documentary evidence.
20. Learned counsel would further submit that earlier the suit before the trial court for permanent injunction in O.S.No.4966/94 against Manju and others came to be decreed on 04.07.1998 and decree of permanent injunction was granted. The defendants therein preferred regular first appeal No.473/1998 under Section 96 CPC before this court and contended that they also had filed a comprehensive suit for declaration of right, title and injunction. The execution of the registered sale deed of the schedule property in favour of grandfather of the defendant No.1 is not disputed. The title and possession over the land in Sy.No.107 was acquired by Doddamuniyamma under the sale deed dated 26.06.1975/10.04.1975 and Munishamappa was in possession of Sy.No.107 and was inherited by 23 Muniyappa his son and plaintiffs who are sons of Muniyappa inherited the same on the death of their father. Thus in the hierarchy of passing of property it is only plaintiffs and none other than them can claim right, title and interest in the schedule property which is land in Sy.No.106.
21. Learned counsel would further submit Manju and others cannot succeed on the basis of oral assertion against valid and legal document which came into existence after complying proper legal formalities under the Transfer of Property Act and the Registration Act.
22. Manju and others in the capacity of the defendants in the suit for permanent injunction or as the plaintiffs in the subsequent suit cannot assert the title, interest and possession of the landed property in Sy.No.106. 24
23. It was further submitted that in the first phase of proceedings the suit of the plaintiff for permanent injunction in respect of the land in Sy.No.106 was decreed by the learned trial Judge and upon the defendants Manju and others preferring appeal before this court in RFA No.473/98 and the said appeal being allowed and matter was remanded to the trial court. It was further submitted it was not a regular failure of respondent in the said appeal. In other words this court observed that when the counter suit for declaration and title was pending before the trial court in respect of the same subject matter the suit for permanent injunction of the plaintiff -Siddaramaiah could be better to have been adjudicated along with Original Suit No.7803/95 filed by Manju and others for declaration and injunction through a common Judgment. 25
24. Accordingly the matters were tried together and disposed of wherein the suit in O.S.No.4966/94 was dismissed with costs and O.S.No.7803/95 is partly decreed with costs.
25. It was submitted that the learned trial Judge erred in understanding the background of the case and rights of the parties. The documentary evidence filed by Siddaramaiah was ignored. A relief is granted to Manju and others who never had title over the schedule property. The suit of the Manju and others against Siddaramaiah was decreed in part wherein the titleless persons were conferred the rights against Siddaramaiah who had all the ingredients coupled with documents over the schedule property and there is overwhelming documentary and oral evidence in support of the case of Siddaramaiah. The land in Sy.No.106 is in actual possession of Siddaramaiah the plaintiff in the earlier suit for permanent injunction 26 and defendant No.1 in the subsequent suit for declaration and injunction.
26. The defendants in the earlier suit Manju and others who incidentally are plaintiffs in the subsequent suit have admitted the title of Siddaramaiah over the schedule property and the learned trial Judge erred in granting relief to them.
27. Learned counsel Sri.C.R.Gopalaswamy for defendants Manju and others in O.S.No.4966/94 who are the plaintiffs in O.S.No.7803/95 submitted that said Siddaramaiah plaintiff in earlier case and defendant No.1 in subsequent case has cleverly suppressed the true facts of the case. He would further submit that the conduct of said Siddaramaiah clearly and conclusively establish the right, title, interest and possession of Manju and others over the schedule property. 27
28. The land in Sy.No.107 situate by side of Sy.No.106 and they are contiguous. Srigandada Kavalu was a village admittedly a rural area. The land in both the survey numbers were vacant and there was no bifurcation or topography. The land that was purchased by grandmother of Manju Doddamuniyamma and mother of Hanumegowda and Thimmegowda. Doddamuniyamma purchased suit schedule property on 26.06.1975 and she is paternal grandmother of Manju, mother of Hanumegowda, Thimmegowda who are the defendants 1 to 3 in the earlier suit O.S.No.4966/94 for injunction and plaintiffs 1 to 3 in O.S.No.7803/95 for declaration and permanent injunction. Thus Doddamuniyamma is the owner of the land in Sy.No.107 under the registered sale deed 26.06.75/10.04.75. One Muniyappa is stated to be the son of said Doddamuniyamma. Thus, the title and possession of the plaintiffs over the 28 schedule property is traced originally to Doddamuniyamma. It is in this connection plaintiffs in the subsequent suit Manju and others claim their right, title, interest and possession over the suit schedule property.
29. Sri.C.R.Gopalaswamy learned counsel for defendants in earlier suit and plaintiffs in the subsequent suit -Manju and others submit that though Muniswamappa was stated to have purchased landed property under the registered sale deed marked as Ex.P-8 and Ex.D-5 in subsequent suit, he was put in possession of land in Sy.No.107 and the status continued for more than 20 years and for all legal and practical purposes Muniswamappa acted and transacted as the owner in possession of land in Sy.No.107 of Srigandada Kaval. He exercised the rights of ownership over land in Sy.No.107 and had 29 ignored land in Sy.No.106. Thus, the plaintiffs in the subsequent suit Manju and others and their elders claiming under Doddamuniyamma transacted, acted possessed their rights over land in Sy.No.106. Learned counsel further submitted that the approach and conduct of Siddaramaiah or his father apparently established and also on dissection, Siddaramaiah represented himself as the owner of land in Sy.No.107. It is in this connection a general power of attorney Ex.P-17 was executed by the said Siddaramaiah in favour of Abdul Kareem Sab defendant No.2. Apart from the general power of attorney other document like affidavit and related were also made in favour of Abdul Kareem Sab.
30. The registered sale deeds were executed by Siddaramaiah through second defendant Abdul Kareem Sab in the subsequent suit and several sites 30 were sold and few of the purchasers of the sites purchased from Siddaramaiah through power of attorney holder Abdul Kareem. Under the said power of attorney marked as Ex.P-17 Siddaramaiah is stated to have authorised Abdul Kareem Sab to sell the site Nos.117 to 123. It is also submitted there was an understanding to sell the said sites by Siddaramaiah to Abdul Kareem Sab. It was further submitted that apart from the above, Siddaramaiah has sold the sites to Ramachandraiah Ex.P-14, Ex.P-15 - Lakshmamma, Ex.P-16 in favour of Ibrahim. It is submitted that Siddaramaiah referred Sy.No.107 and sold the sites formed by him in land in Sy.No.107 of Srigandada Kaval Village to different purchasers as per Ex.P-14, 15 and 16.
31. Learned counsel further submitted that very Siddaramaiah has admitted the selling of sites in Sy.No.107. 31
32. The claim of plaintiff Siddaramaiah for relief of permanent injunction in O.S.No.4966/1994 is in respect of the landed property in Sy.No.106 and he places the claim by virtue of the sale deed in favour of his grandfather Sri.Munishamappa and the related sale deed is dated 04.10.1949 marked as Ex.P8 in OS No.4966/1994.
33. Similarly, the claim for the relief of declaration and permanent injunction of Manju and others in OS No.7803/1995 is in respect of landed property in Sy.No.107 of Srigandada Kavalu Village.
34. It is not a rival claim claiming under rival vendors and denying the title of the same property by each other. On the other hand, the title of Siddaramaiah is admitted in respect of the land in Sy.No.106 by the plaintiffs Manju and others in their 32 plaint in OS No.7803/1995 and also as the defendants in OS No.4996/1994.
35. In order to enable convenient reading, it is necessary to mention the stand of Manju and others, the plaintiffs in OS No.7803/1995 which is as under: Manju assert that the sale deed is in favour of Smt.Doddamuniyamma, grandmother who has purchased the schedule property under a registered sale deed dated 26-06-1975/10.04.1975 and the survey number mentioned is Sy.No.106 but the title deed is not produced and the number mentioned in the suit is Sy.No.107. However, the plaintiffs Manju and others were put in possession of the land in Sy.No.106 that has been acted upon by all the persons including the defendant No.1 - Siddaramaiah and the plaintiffs -Manju and others. As a matter of fact, they also claim adverse possession over the said land. However, while answering the issues, the trial 33 Court has not accepted the plea of adverse possession.
36. It is their further case that Siddaramaiah has chosen to act upon the land in Sy.No.107 and through various acts of possession and ownership, even gone on record by executing the registered sale deeds in respect of the third parties and also appointing defendant No.2 in OS No.7803/1995 as General power of attorney by conferring him powers to sell the land in Sy.No.107. Thus, Manju and others assert that the property under their possession and ownership is the land in Sy.No.106 of Srigandada Kavalu Village. Similarly, they admit the title and possession of Siddaramaiah over the land in Sy.No.107. In other words, it is the contention of the plaintiffs Manju and others in OS No.7803/1995 that both have acquired the title with possession over the respective lands. Thus, according to the plaintiffs 34 Manju and others, they are the holders of the title and in possession over the land in Sy.No.106 and not wrongly represented as Sy.No.107. They further assert that the defendant No.1 - Siddaramaiah who is also the plaintiff in OS No.4966/1994 has enjoyed, possessed and has exercised rights of ownership and possession in respect of the land in Sy.No.107 and not in Sy.No.106.
37. In this connection, I find though not actually upon the context, Section 35 of the Transfer of Property Act is worth to be mentioned as the said provision of law deals with the Doctrine of Election. However, under the said provision of law, the reference of sale by the same person who is not the owner of the subject matter to the third party and in the sale deed, he confers title over the property in favour of the true owner of the property which he has transferred to the third party. Under such an event, 35 the owner of such a transferred property has to elect either to accept such benefit conferred to him in respect of the property transferred in his name or to descend the transfer made by such transferor in favour of the third party.
38. In case of such election by the true owner to enjoy the benefit conferred on him would result in accepting of the transfer of the property. However, the benefit should have been conferred on the true owner directly.
39. In this case, it is submitted that both the lands in Sy.Nos.106 and 107 did not belong to a common person at any point of time and no transaction is made, wherein the true owner is conferred benefit on a separate property. However, the principle of doctrine of election comes up for discussion in the matter. 36
40. Another provision of law that requires to be mentioned is that the plaintiffs - Manju and others attempted to drive a point to Section 41 of the Transfer of Property Act. The said provision of law reads as under:
"41. Transfer by ostensible owner.— Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.
41. A person is an ostensible owner of a particular property wherein the owner of the property has consented expressly or impliedly of such person, own and possess the said property and when such person who has the consent either expressly or impliedly transfers the said property for consideration. Such transfer shall not be voidable on the ground that the 37 transferor was not authorized to make. However, proviso to said Section indicates that the transferee after taking reasonable care to ascertain that the transferor had power to make transfer and act in good faith.
42. In the facts and circumstances of the case, it is not the case that the plaintiffs - Manju and others (in OS No.7803/1995) have sold the property to others and they were ostensibly held that their contentions that they were allowed and entertained to be the owners of the landed property in Sy.No.106 of Srigandada Kavalu Village by the defendant No.1- Siddaramaiah as the latter by acting as the owner of the landed property in Sy.No.107 of Srigandada Kavalu Village entered into various transactions including selling of seven sites in Sy.No.107 and also appointing defendant No.2 - Abdul Kareem Sab as the General Power of Attorney by authorizing him to sell 38 the substantial portion of the landed property in Sy.No.107 of Srigandada Kavalu Village. Thus, it also becomes relevant to take the support of Section 41 of the Transfer of Property Act regarding Doctrine of Ostensible ownership as to whether the said principle is applicable or otherwise on the case on hand.
43. Further, the documents filed by the plaintiff Siddaramaiah in OS No.4966/1994 and defendants Manju and others consists of the following: • Ex.P1 is the notice issued to Siddaramaiah relating to MR No.11/1993-94 stating that the action could not be taken because of non furnishing of the mutation extract. • Ex.P2 is the genealogical tree which is not seriously disputed. • Ex.P3 is the death certificate of Sri.Munichikkaiah, father of the plaintiff - Siddaramaiah. 39 • Ex.P4 is the ledger extract in the name of Sri.Munishamappa in respect of the land in Sy.No.106. • Ex.P8 is the registered sale deed dated 04.10.1949 in favour of Sri.Munishamappa, wherein the property is purchased in Sy.No.106 of Srigandada Kavalu village to the extent of 2 acres. • Ex.P24 is the copy of the appeal memo filed by Siddaramaiah in appeal No.200/1995. • Exs.P25 to 30 are the RTC extracts of Sy.No.106 for the years 1980-81 and 1981-82 in favour of Munishamappa, the grand father of the plaintiff - Siddaramaiah. • Ex.P31 is the endorsement issued to Siddaramaiah from Rajgopalnagar Police Station to appear before the Civil Court. • Ex.D1 filed by the defendants - Sri.Manju and others is the RTC extracts for the year 1993- 94, 1994-95 and 1995-96 wherein the name of Sri.Munishamappa is rounded off and Smt.Doddamuniyamma has been entered and in Column No.9 also similar entries are made 40 and sofar as Column No.10 is concerned, regarding other rights in RTC MR.No.11/1993- 94 is mentioned which refers the revenue entry in favour of Sri.Munishamappa that existed earlier to 1993-94 was bracketed and thereby, name of Sri.Munishamappa, the grand father of the plaintiff Sri.Siddaramaiah in OS No.4966/1994 is taken off and name of Smt.Doddamuniyamma, the grand mother of the plaintiff in OS No.7803/1995 namely Sri.Manju and others replaced is also in the RTC records of 1995-96 is marked as Ex.D3. • Ex.D4 is the similar RTC extract, wherein the name of Smt.Doddamuniyamma was mentioned till 1993. However, the same is bracketed and name of Sri.Siddaramaiah has been entered into as per Column No.10, wherein RHC No.5/1990-91 is mentioned and katha No.116 has been entered in respect of the land in Sy.No.107. What is revealed from the documents filed by the plaintiff Sri.Siddaramaiah is the land in Sy.No.106 of Srigandada Kavalu Village was originally purchased by Sri.Munishamappa. The revenue entries in favour of Sri.Munishamappa was 41 bracketed and name of Smt.Doddamuniyamma was entered into in the RTC extract and the Assistant Commissioner at Ex.P1 directed to issue notice to the parties for adjudication in the Civil Court.
44. Insofar as the plaintiffs in OS No.7803/1995 Manju and others is concerned, it consists of the following: • Ex.P1 is the mutation extract, which discloses that Siddaramaiah, the applicant has sought for change of katha in his name in respect of the land in Sy.No.77/6 to the extent of 2 acres, Sy.No.49/3 to the extent of 11 guntas and in Sy.No.107 to the extent of 2 acres of Srigandada Kavalu Village and the said mutation was changed on 29.12.1989. • Ex.P2 is the mutation extract of the proceedings, wherein the katha of Sy.No.107 was ordered to be made in favour Siddaramaiah and the land in Sy.No.106 was ordered to be made in favour of Smt.Doddamuniyamma for the year 1993-94. 42 • Ex.P3 is the order passed by the Assistant Commissioner dismissing the appeal stating the rights of the parties will be stood as per the result of the Civil Dispute in OS No.7803/1995. Here, one aspect which is necessary to be mentioned is, it is usual in many cases of the revenue disputes, the revenue authorities are just adopting a hand wash attitude without putting efforts to adjudicate the matter on merits. No doubt, the declaration of title and the suits of civil nature are the domain of the Civil Court. • Ex.P4 is the copy of the mahazar dated 16.12.2001. • Ex.P5 is the demand notice issued to Smt.Doddamuniyamma regarding use of agricultural land for non agricultural purposes in respect of the land in Sy.No.106. Incidentally, this notice was dated 13.08.2001. This kind of notice, now a days have their efficacy and enforceability. The notice was issued in respect of the agricultural land using 43 for non agricultural purpose in respect of Sy.No.106 and it is addressed to Smt.Doddamuniyamma and the plaintiffs Sri.Manju and others have filed the said documents for the purpose of their case, that apart this kind of notice issued by the Revenue Department is a practice. In majority of the cases, spirit at the beginning does not lost till end. Such notice was issued observing that the land has been used for non agricultural purpose. • Ex.P7 is the RTC extract of Sy.No.106 in favour of Smt.Doddamuniyamma, so also Exs.P8 and 9 from 2001 to 2004. • Ex.P11 to 13 is the rental agreement in favour of Sri.Thimmegowda in respect of the land in Sy.No.106. • Ex.P14 is the copy of the sale deed in favour of Sri.Ramachandraiah. • Ex.P15, is the copy of the registered sale deeds filed by Sri.Manju and others to demonstrate that Sri.Siddaramaiah - the 44 defendant in OS No.7803/1995 and also plaintiff in OS No.4966/1994 has sold the landed property to the extent of Southern portion of landed property in Sy.No.107 to one Sri.Ramachandraiah, S/o Sri.Mudalagiri Shetty. The said registered sale deeds are stated to have been effected on 11.12.2003 and 10.12.2003 respectively, which is subsequent to the filing of both OS Nos.4966/1994 and 7803/1995 and the seller in the case Sri.Siddaramaiah, who is the plaintiff in OS No.4966/1994 and the defendant in OS No.7803/1995. • Ex.15 is a copy of the registered sale deed dated 11.12.2003 executed by Sri.Siddaramaiah in favour of Smt.Lakshmamma. It is stated to be a site measuring 22.5 feet x 30 feet out of Sy.No.107 being Northern half of Sy.No.107. • Ex.P16 is a copy of the registered sale deed dated 10.12.2003 stated to have executed by Sri.Siddaramaiah in favour of Sri.Ibrahim and the extent of land shown therein is a site measuring 36 feet x 15 feet. 45 • Ex.P17 is the notarized power of attorney stated to have executed by said Sri.Siddaramaiah in favour of Sri.Abdul Kareemsab S/o Late Lalamiya on 05.04.1991 in respect of sites Nos.117, 118, 119, 120, 121, 122 and 123 in Sy.No.107.
45. The provision of Section 35 of the Transfer of Property Act may be not directly applicable to the case. But the principle recognized therein relate to the bone of contention. However, only principle therein is, transfer of property by a person who is not the owner of the property, the same transferor confers benefit of other property on the owner directly. It is for the owner of the property so transferred to accept the transfer by retaining the benefit of transfer. If he accepts the transfer he is deemed to have accepted for such transfer.
46. There is underlying connection between Section 35 of Transfer of Property Act which deals with 46 Doctrine of Election and Section 41 of Transfer of Property Act which deals with Doctrine of Ostensible transfer. The other provisions applicable for the period within which the true owner may chose the Act of the transfer and other circumstances are embodied in said provision of law.
47. Sections 35 of Transfer of Property Act reads as under:
"35. Election when necessary.—Where a person professes to transfer property which he has no right to transfer, and as part of the same transaction confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or to dissent from it; and in the latter case he shall relinquish the benefit so conferred, and the benefit so relinquished shall revert to the transferor or his representative as if it had not been disposed of, subject nevertheless, where the transfer is gratuitous, and the transferor has, before the election, died or otherwise become incapable of making a fresh transfer, and in all cases where the transfer is for consideration, to the charge of making good to the disappointed transferee the amount or value of the property attempted to be transferred to him. 47
48. Under Section 41 of the Transfer of Property Act as extracted above, the property is transferred by a non owner and duty of owner of the property so transferred expressly or impliedly helps such transfer as the owner of the property so that law makers believe that transferor is the owner of the property.
49. When the circumstances suggest and establish that the owner of an immoveable property held and manifest whether expressly or impliedly, such transfer as owner of the property later he is debarred from questioning the act of the transferor. However, in both under Sections 35 and 41 of Transfer of Property Act, purchaser should have acted in a bonafide manner and with all reasonable enquiries.
50. In the present case, it is not mere assertion and denial of title. Land in Survey No.107 to the extent of 2 acres originally belonged to the vendor of 48 Doddamuniyamma. It was sold to her in the year 1975. The plaintiffs - Manju and others claim the schedule property was inherited by them through Doddamuniyamma. The difference between the plaintiffs and the defendants is that, plaintiffs -Manju and others claim that the vendor though sold the land in Survey No.107 put the plaintiffs in possession of land in Survey No.106. It is also stated to be 2 acres in extent and situate by the side of each other in north south direction. To substantiate the said contention of the plaintiffs in OS No.7803/1995, defendant No.1- Siddaramaiah by his expressed acts substantiated the contentions of the plaintiffs namely under Exs.P14,15 and 16. The said Siddaramaiah has executed three registered sale deeds respectively, that too, subsequent to the filing of the suit in favour of three different purchased and land and properties all 49 stated with different site numbers, but survey No.is 107.
51. Further, he executed power of attorney Ex.P17 in favour of Abdul Kareem Sab son of late Lalamia in respect of southern portion of land in Survey No.107 that goes to show that defendant No.1-Sidddaramaiah in the said subsequent suit has acted as owner and in possession of the schedule property and his parting more than half of the land in survey No.107 which is by the side of northern side. Thus, both are contiguous land. The name of the plaintiffs Manju and others is reflected through the acts of defendant No.1- Siddaramaiah.
52. In the earlier suit in OS No.4966/1994, Siddaramaiah is the plaintiff and defendants are Manju and others. Incidentally, in the subsequent suit for declaration and permanent injunction, Manju and 50 others are the plaintiffs and Siddaramaiah is the defendant No.1. Further the plaint in the earlier suit almost is equal to the written statement in the subsequent suit and vice versa. Under the circumstances, the question is, whether the plaintiffs Manju and others are entitled to enjoy the ownership and possession of land in Survey No.106 on the ground that defendant No.1-Siddaramaiah has acted as owner of the property and represented himself to the purchasers also and even the plaintiffs Manju and others have not questioned it. Thus, in the circumstances of the case, whether erroneously or with intention parties have acquired a particular land and acted as owners over a different land. That applies to both of them and both are sailing in the same boat. Here, it is to be noted that revenue entries are made in favour of plaintiffs-Manju in respect of Survey No.106, Srigandada Kavalu village. 51 Basically, when the matter came up before the Assistant Commissioner in appeal, the learned Assistant Commissioner did not exercise his jurisdiction of adjudicating the matter, on the other hand, observed that the rights of parties are subject to the decision of the Civil Court. In precise the matter went to original suit and it was adjudicated by trial judge thereafter. It is also stated that plaintiffs Manju and others having claimed Survey No.106 to be in their possession and enjoyment in the remaining part of the prayer sought declaration regarding nullity about the power of attorney Ex.P17 in the subsequent suit executed by Siddaramaiah in favour of 2nd defendant-Abdul Kareem Sab and also the transaction entered into in respect of survey No.107. Thus, whether the plaintiffs or defendant cannot blow both hot and cold together. 52
53. When the plaintiffs claim that Doddamuniyamma purchased the land in Survey No.107, but she was placed in possession of land in Survey No.106 and it continued even for more than several decades even earlier to it. Insofar as defendant No.1- Siddaramaiah in the subsequent suit is concerned, he has recognized land in Survey No.107 as the land that was sold in favour of his grand father Muniswamappa. The Courts also must be cautious of the fact that through any order that may be passed by it third parties shall not be put to loss more particularly when they are parties to it. This statement is observed in the light of the fact that Siddaramaiah has sold seven sites i.e. substantial portion of land in Survey No.107 and also executed power of attorney in favour of 2nd defendant to sell. However, under the unorthodox method of power of attorney, affidavit and related. In the judgment of the 53 trial court it is not stated regarding the other prayers in respect of survey No.107. The contextual submission of both the parties indicate that claim over survey No.106 is by both of them. The plaintiff is not entitled for survey No.107, admittedly, foregone by them. It could be understood that when nearly more than half of the extent of land and property in survey No.107 are sold by defendant No.1- Siddaramaiah and plaintiffs Manju and others have retained the land in survey No.106. In the circumstances, when there is actual acquisition of ownership and possession there cannot be dislodging of vested title and possession. In the circumstances, the learned trial judge was right in finding declaration of title alone to the plaintiffs- Manju and others and has not mentioned the specific dismissal of other prayer and that requires to be clarified. However, in the circumstances, it is taken that the relief in respect 54 of survey No.107 is not granted to the plaintiffs- Manju and others.
54. Learned counsel Sri. C.R. Gopalswamy for plaintiffs-Manju and others submitted that they will not claim the right, title in respect of the land in Survey No.107. Insofar as defendant No.1- Siddaramaiah is concerned, when he has shown the land to the extent of 2 acres including karab and apparently, when he has sold the substantial portion to different purchasers in Exs.P14, 15 and 16 and also executed power of attorney in favour of 2nd defendant and revenue entries in respect of land in survey No.106 standing in the name of Manju and others practically it goes to show defendant No.1 cannot claim injunction in respect of the property which he does not possess and own. 55
55. Insofar as possession to get an order of injunction it is presumed to be lawful. The lawful possession is always reckoned with reference to nature in which a person is put to possession.
56. The mental feeling is satisfaction that said person had entered into possession of the property without any foul or irregular means.
57. Entering into possession as claimed by plaintiffs Manju and others can never be termed as unlawful. However, having sold the properties in survey No.107 defendant No.1 cannot claim the land and properties in survey No.106 and equally he is not entitled for possession. At this juncture, it is necessary to mention that there is stray averment that defendant No.1 Siddaramaiah also owned land to the extent of 10 guntas in survey No.107 it is neither substantiated by acceptable documents nor circumstances. 56
58. In the circumstances, the Transfer as contemplated under Section 5 of the Transfer of Property Act includes several types such as sale, mortgage, gift, lease and exchange and also Section 17 of the Registration Act deals with the transfer. Irrespective of what has happened, the court itself cannot be an agency of transferring land from one person to another person, though the requisite procedure has to be followed. The plaintiffs are also entitled for documents by virtue of the document of registration of title and accordingly, they are entitled to get a document from the defendants, failing which, they are entitled to get it done through the process of court. Otherwise, I do not find any substance in the appeal preferred by defendant No.1 Siddaramaiah in RFA No.108/2006 as 1st defendant in OS No.7803/1995 and RFA No.107/2006 also as plaintiff 57 in OS No.4966/1994. Both the appeals are devoid of merits.
59. Insofar as registered document is concerned, it is for the parties to get the duly stamped and registered documents by virtue of this judgment to comply with the provisions of the Transfer of Property Act, Stamp Act and Registration Act. Both the appeals are devoid of merits and are dismissed. No orders as to cost. Sd/- JUDGE SBN/GH/tsn*